Friday, March 6, 2015

Settled law ought not to be ignored lightly: stare decisis remains the basis of law

R v Caswell, 2015 ABCA 97:

[37] The scope for invoking the per incuriam exception to stare decisis is limited. The new exception established in Bedford should be invoked with similar restraint. While Bedford, we are told, signifies that "stare decisis is not a straitjacket that condemns the law to stasis" (Carter v Canada (Attorney General), 2015 SCC 5 (CanLII) at para 44 [Carter]),Bedford should not in any sense be taken either as a declaration of open season on stare decisis, or as positing that the vast majority of Charter issues which have been settled by higher courts, and especially by the Supreme Court, are no longer settled.

[38] As a practical matter, the legal system cannot sustain the uncertainty and expense that would flow from reconsidering every appellate decision ever pronounced on section 8 and section 10 of the Charter. More fundamentally, accessibility of the law – which is a core principle of the rule of law (Bingham, The Rule of Law, 2010 at 37) – requires that the law be intelligible, clear and predictable, and subject to orderly development in incremental steps: Carter at para 44; Regina v Boardwalk Merchandise Mart Ltd(1972), 31 DLR (3d) 452 at 454 (ABSCAD), leave to appeal refused [1972] SCR xi, [1972] SCCA No 1 (QL), 9 CCC (2d) 548; Sheddon v Goodrich (1803), 8 Ves 481, 32 ER 441 at 447. Constitutional legal order itself presupposes the creation and maintenance of positive laws. Since the enactment of the Charter, courts in Canada have carefully sought, decision by decision, to balance the relationship between Charter rights and the Criminal Code. The public interest is not served by upsetting that balance whenever it is asserted that "it's different now". Adopting such a relaxed threshold for doing so also bypasses legislators (who might also consider that "it's different now"), thereby turning the so-called "dialogue" which has been said to describe metaphorically the relationship between courts and Parliament into something closer to a court-to-legislator monologue.